Hacking your spouse’s cell phone is a criminal offence

An article appeared in the Sunday Times recently of a divorce matter where I appear on behalf of a wife. Her millionaire husband, is at the centre of a criminal investigation over the alleged illegal interception of his estranged wife’s private e-mails, SMSes and BlackBerry messages, or BBMs.

The hacking was first suspected when Dr Graham Hefer – a former Natal rugby player – filed divorce proceedings against his wife Denise.

Court documents in that case seemed to show that Hefer had access to more than 50 BBMs, over a dozen SMSes and at least five e-mails between Denise and others this year.

The case has revealed that the BBM facility, one of the preferred “secure” methods of communication can be hacked with relative ease.

Hefer, 48, the managing director of a Nigeria-based British company, is accused of installing spyware software on 49-year-old Denise’s BlackBerry. This type of spyware is readily available.

This is said to haveallowed real-time monitoring of her communication and her whereabouts, and for eavesdropping on her private conversations. These included discussions with her lawyer.

Police confirmed that the matter was under investigation by the Cape Town Central Police Station. Interception and monitoring of telephone communication is prohibited under the Regulation of Interception of Communications Act, known as Rica.

On Wednesday Denise filed a criminal complaint in which she claimed that Hefer had allegedly violated section 2 of Rica, which carries the possibility a fine of up to R2-million or up to 10 years in prison.

In an affidavit, she said she first became suspicious when her husband beat her to filing for divorce in May.

She said she had confidentially instructed her lawyer to issue summons to begin divorce proceedings.

She was shocked when Hefer ‘s attorney, without having been informed who her legal representative was, issued summons at her lawyer’s office.

”What I could not understand was how the accused and his attorney’s knew who my attorney of record was,” read her affidavit.

She claims her husband mentioned details of confidential discussions she had had with her lawyer, which led her to believe her phone had been hacked.

Her lawyer, Bertus Preller of Abrahams & Gross, said the allegations were serious. “There was a grave injustice towards the party involved in that it infringed attorney/client confidentiality,” Preller said.

Denise claims an investigation by her legal team revealed that a type of cellphone spyware, which can be purchased on the internet for R2 792, had been installed on her handset.

The software sends alerts to the e-mail address of the installer, who then has access to the telephone calls or messages on the phone being monitored.

Hefer’s lawyer, Selwyn Shapiro, who said he had advised his client not to comment, said the allegations were unfounded.

”We will deal with it at an appropriate time in the right forum,” said Shapiro.

Kathleen Rice, head of technology, media and telecommunications at law firm Cliffe Dekker Hofmeyr in Johannesburg, said Rica allowed for the interception of communication – but only in police investigations, ”and that can only be done with a court warrant. BBM messages are indirect communication but, if it’s being intercepted and monitored, that makes it a criminal offence .”